Merck MDL Update: Fosamax® "Failure To Warn" In Femur Cases Before Third Circuit Today

Just a minor appellate update squib here -- this flawless holiday morning, over hot coffee & cream, fresh-squeezed OJ, and a banana -- whole cherry yogurt coming up, next -- smile.

Recall that the trial courts have dismissed all the Fosamax^® femur MDL "failure to warn" claims. That July 2014 ruling reduced the number of femur MDL claimants from over 1,000, to under 20. The MDL steering committee has appealed the able Judge Pisano's ruling to the Third Circuit. A full two years later now, that appeal will be heard today, it seems.

Here is the Reuters item noting it.

We will report if anything newsworthy transpires. Onward -- on a mountain bike -- on a glorious morning, eyes a-glow. . . .

Small PSA Dept: If You've Filed A Fosmax® Claim -- Especially YOU: Kathy Herring, And Sheila Ann Rahey -- Check In With Your Lawyer

As long as we are sweeping up around the old joint -- for the long (mothballed-machinery style) weekend -- on most matters alendronate sodium (branded as the osteoporosis drug Fosamax^®), I'll encourage the people who haven't done so recently to check in with their lawyers.

The two people mentioned above are likely Minnesota residents, and have gone missing according to their lawyers. And so, their cases may be adversely affected by the entry of a Lone Pine order shortly -- if they do not turn up. This PSA is applicable to perhaps two dozen other similarly situated claimants. If your lawyer cannot reach you, or you haven't checked in with your lawyer in the last year, and your medical expert papers are not yet available -- or are not in order -- and/or you are making an "atypical" claim, your case may get dismissed due to your own non-responsiveness. See this non-opposition motion, as typical of the non-responder group:

. . . .Pursuant to the Court’s Order of June 9, 2014 (Doc. No. 1666), Plaintiffs Kathy Herring and Sheila Ann Rahey, by and through their counsel, hereby respond to Merck’s Third Motion for Entry of a Lone Pine Order. . . .

Plaintiffs’ counsel has been unable to contact Plaintiffs Kathy Herring and Sheila Ann Rahey. See Declaration of Charles H. Johnson, dated June 27, 2014. Counsel for Plaintiffs takes no position on Merck’s Motion for Entry of a Lone Pine Order. Counsel for Plaintiffs will continue to try to reach Plaintiffs Kathy Herring and Sheila Ann Rahey. . . .

If you know either of these two -- let them know, and tell them to call their lawyer, Charles H. Johnson of New Brighton, Minnesota [he's definitely listed in the white pages -- and the yellow ones(!)]. Now, if you are traveling for the long holiday weekend -- please be safe -- and have yourself a great adventure!

The Gaynors' Fosamax® Femur Complaint May Not Properly Sound Against Merck -- But It Does, Against SOME-one.

A few weeks ago, the very able federal trial court Judge Joel Pisano dismissed a Fosmax^® femur fracture case, on summary motions. It was to be one of the "femur" bellwether cases.

The case was brought by Barbara Gaynor. Merck was let out of the case because at about the time Mrs. Gaynor sustained her femur injury, Merck had by then made very substantial, and ongoing efforts -- at FDA -- to revise its warnings related to the drug, specifically about femur fractures. But to greatly oversimplify the applicable law here, and as the FDA rules are designed to work -- Merck was not allowed to make the label change (at least not the ones the Gaynors' lawyers were advocating would have changed her outcome) -- until cleared by the agency. So it cannot be that Merck was at fault for failing to warn Mrs. Gaynor, Judge Pisano rightly ruled -- as FDA was at that moment effectively preventing Merck from doing so.

I am interested, though -- by this bit, from the published opinion, in USDC NJ Case No. 12-1492:

. . . .Mrs. Gaynor began taking Fosamax in 1996 and was prescribed the drug by seven (7) different physicians until September 20, 2011, when she sustained a right spontaneous atypical femur fracture. . . .

. . .[T]he Gaynor Plaintiffs’ expert, Dr. Charles Cornell opined that ". . .even if Mrs. Gaynor had been taken off Fosamax by February 2011, she still would have had severely compromised femoral bone due to her pre-2011 prolonged Fosamax use.” See Declaration of Edward Braniff, at Ex. 1 ¶ 20. . . .

It is not clear from the record, but it seems that Mrs. Gaynor was either never prescribed a drug holiday -- or if so, it was less frequent than once every five years, for a period spanning over 15 years. The literature on advisablity of Fosamax drug holidays was well-developed by 2009 if memory serves. So my hunch is that her claim still remains quite viable -- against one or more of the prescribing physicians. Just my hunch.